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COURT QUASHES APPOINTMENT OF PHARMACY BOARD’S CHAIRPERSON OVER INTEGRITY CONCERNS.

Pharmacy and Poisons Board (PPB) of Kenya chairman Dr Charles Githinji whose appointment has been quashed by High court.

BY SAM ALFAN.

The High Court has quashed the appointment of Dr Charles Githinji as the chairperson of the Pharmacy and Poisons Board.

Justice Enock Mwita quashed Dr Githinji’s appointment as contained in the Kenya Gazette Notice No. 630 on 20 January 2023.

Justice Mwita ruled that the appointment was made contrary to the guiding principles of leadership and integrity, which require selection on the basis of personal integrity, competence and suitability.

Justice Mwita further declared that Dr. Githinji’s appointment violated the constitutional principles in article 232 of the constitution as read with section 10 of the Public Service (Values Principles) Act of high standards of professional ethics, fair competition and merit as the basis of appointments and promotions.

“The appointment violated article 232 as read with section 10 of Public Service (Values and Principles) Act. Dr. Githinji’s appointment was not open, transparent, and competitive and merit based, a contravention of articles 10 and 232 of the constitution,” Judge Mwita ruled.

The Judge agreed with lawyer Apollo Mboya that the appointment did not show that his integrity and suitability was above reproach.

“The decision of the court in Judicial Review Application No. 686 of 2009 did not clear the petitioner from the accusations he faced. The Board’s decision was set aside due to procedural impropriety and not the merit of that decision. The appointment failed the test in article 73(2) of the constitution,” said the judge.

Mboya challenged Dr Githinji’s appointment said he was convicted by the Kenya Medical Practitioners and Dentist Council (KMPDC) for alleged negligence and ordered to pay Sh27,000.

The lawyer said the medic was accused of gross negligence as a pharmacist, a move that contributed to the death of a patient.

Dr Githinji was allegedly accused of failing to take the history of the patient and which led to improper diagnosis and inappropriate prescription of Halfan and masquerading as a medical practitioner, engaged in diagnostic and curative services.

He adds that the decision of KMPDC was affirmed by the High Court in the judgment delivered on May 29, 2019, where Dr Githinji was slapped with general damages of Sh1.05 million.

Dr Githinji clarified that he is not a doctor or dentist but a registered pharmacist.

In response to the case, Dr Githinji maintained that he could not be subjected to disciplinary by Kenya Medical Practitioners and Dentists Board.

Dr Githinji said in response to the petition filed by lawyer Apollo Mboya that he challenged the decision by the board to fine him Sh27,000 for gross misconduct and for acting beyond his calling.

The board had slapped him with the fine following the death of a minor, after allegedly failing to take his medical history, leading to improper diagnosis and inappropriate prescription.

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LENDER ORDERED TO PROVIDE SHAREHOLDERS WITH FIRM’S INFORMATION AS HE SEEKS TO KNOW ITS FINANCIAL STATUS.

TRV Towers limited directors Tribhovan Lalji Chavda and Jayesh Tribovan Chavda before court where they denied sh112 million fraud.

BY SAM ALFAN.

Bank of India has been ordered to surrender various documents belonging to TRV Towers Limited for auditing.

High Court Commercial Division Judge Josephine Mong’are ordered Bank of India to produce bank account operating mandate forms, Bank statements, full titles of all bank accounts including deposit accounts, retention accounts and foreign exchange accounts together with their account numbers and balances.

The lender will also be required to provide copies of account opening forms for all bank accounts, particulars of all authorized signatories of all the bank accounts, copies of resolutions provided to open ban accounts, details of loans, overdrafts, guarantees and any associated indemnities and any securities held by the bank.

Judge Mong’are ruled that TRV Towers Ltd was entitled to the information it has sought from BOA.

The judge added that Virji Mecgji Patel, a director and shareholder of the firm was is entitled to the information on his own behalf and on behalf of the company even though he is not a signatory of the TRV’s bank account.

The Judge agreed with the TRV Towers Ltd that it was unreasonable for the Bank to withhold such information under the pretext that all signatories must agree to the request.

“It is my finding that the Applicant is entitled to the information about itself from the Bank and therefore the issue of confidentiality does not arise as the same information does not relate to a third party.

“Further, I am satisfied that no prejudice will be suffered by the Bank in availing the said documents requested by the company and if anything, I believe that the company will meet the attendant costs associated with the Bank preparing and furnishing the said documents as per the terms of their banking relationship,” ruled judge Mongare.

TRV Towers Ltd filed the application seeking to compel the bank to avail the documents for auditing purposes.
Two directors of TRV Towers Ltd have been charged with defrauding the company Sh112 million.

Tribhovan Lalji Chavda and Jayesh Tribovan Chavda appeared before Milimani Magistrate Benmark Ikhubi and denied the charges.

The two are accused that on the diverse dates between 16th day of October 2019 and 31st of July 2023 at unknown place, jointly with others not before court, conspired to defraud TRV towers ltd Sh112.

In the application, TRV Towers Ltd argued that as being in default of its financial obligations and the company is apprehensive that its properties are in imminent danger of being sold off.

“That the said notice of sale is set to expire on the 30″ October 2023 and the Applicant is further apprehensive that the Bank will proceed to sell the company’s properties. Company through a board resolution passed on the 12th July 2023 has resolved to conduct a forensic audit to establish the status of its financial affairs and that in order to conduct a comprehensive forensic audit, the company requires to access its bank account number 0022*697 held at the Bank institution,” said the firm.

The company stated that pursuant thereto and through its Advocates, it wrote to the Bank of India and requested for access and information concerning the said account but that the Respondent has declined to release any information touching on the account to the company and that the company, being the Respondent’s customer, operator of the said bank account and proprietor of the information so requested, is entitled to full access of the account and to the information.

In response, Bank argued that the application is misconceived, ill advised, frivolous, vexatious, an abuse of court process and is intended to mislead this court and the same should be dismissed with costs awarded to the Respondent. By way of background and summary the Bank of India presents that on 10 August 2023, the company through its Advocate wrote to the bank requesting for account information in respect to Account Number 0026*396..

In a letter dated 16 August 2023, the Bank replied to the Advocates said it was mandated to keep all the data in their possession or under their control confidentially and the request should be accompanied by instructions from all signatories to the bank account.

The bank said this was because of the Data protection Act as read together with the General Data Protection Regulations.

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OMNICARE MEDICAL FIGHT CLOSURE,DRAGS CITY HOSPITAL INTO DRAMA SURROUNDING DEATH OF A WOMAN WHO UNDERWENT “BOTCHED” SURGERY.

Omnicare Medical Off James Gichuru road Lavington./PHOTO BY SUSAN KAMAU.

BY IRENE ONYANG.

A Nairobi based private clinic has moved to court seeking stop plans by the medical board to close the hospital.

Omnicare Medical filed the case to quash a notice by the Kenya Medical Practitioners and Dentist Board, threatening to suspend the clinic’s operations pending investigations into the death of a woman at the facility.

“An order for prohibition refraining the KMPDU from interfering with the medical activities and procedures as conducted by the Applicant herein at Omnicare Medical and to allow continuous smooth running of the facility,” pleads the facility.

The facility further said threats by the KMPDU to close the facility without notice is unreasonable and in bad faith as the board is well aware of the ongoing fights between the facility and the state.

“This court does allow an exception to the Applicant exempting him from the obligation of exhausting other remedies available in the ultimate interest of justice, as by the time the same remedies are sought it will be too late and therefore an academic exercise,” omnicare medical said through lawyer Danstan Omari.

The facility argued that it has qualified doctors, medical officers and nurses is a medical facility specializing in cosmetic medical procedures.

“A patient by the name Lucy Wambi Kamau on the 16th day of October, 2024 walked into the applicant’s office for a medical procedure,” Omari said.

The woman sought liposuction and after a series of tests on the said patient at the facility and MP Shah Hospital, the patient was declared fit for the medical procedure and the same was done.

Through Omari, the facility claims that the patient was supposed to be discharged on the 17th day of October but on her own volition requested for more days at the facility, which was granted.

On the 18th day of October she complained of chest pains and was attended to by doctors and nurses at the facility.

Omari said the woman left the facility on the 22nd day of October, 2024 after she confirmed that she was ready to be discharged on recommendations of the doctor at the facility.

The facility claimed that she came back to the facility at 6PM but it was already closed for the day’s business.

A relative of the woman then called a Medical Officer from the facility who followed them to Nairobi Hospital where she was attended to and a second medical procedure done on her at Nairobi Hospital on the 23rd day of October, 2024.

Unfortunately, the patient died on the 26th day of October, 2024 while undergoing treatment at Nairobi Hospital

“Vide a letter dated 29th October 2024, the patient’s family through an advocate invited the Director of the Applicant facility to attend a Postmortem of the patient at Nairobi Hospital, a request which was gladly accepted,” facility adds.

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BUSINESSMAN CHARGED WITH DEFRAUDING MACADAMIA INVESTORS.

Hussein Sheikh Abdullahi before Milimani Magistrate court./PHOTO BY S.A.N.

BY SAM ALFAN.

City businessman Hussein Sheikh Abdullahi has been charged with issuing a bad cheque of Sh11.6 million in a fake macadamia deal.

Abdullahi appeared before Milimani Magistrate Lucas Onyina and denied 20 counts of issuing bad cheques.

He is accused of obtaining USD 90,000 equivalent to Sh11.6 million from Hassan Aden Bare  the 26th day of September, 2024 Nairobi’s South B.

It is alleged that he falsely pretended that he was in a position to assist him venture into the business of buying and exporting Macadamia nuts, a fact he knew to be false.

The prosecution told the court that on the 11th day of January, 2024 at Diamond Trust Bank headquarters within Nairobi County, he allegedly issued a Cheque valued at USD. 9,000 dated 11th January 2024 through DIB Bank Kenya Limited in favour of City Gas East Africa Limited knowing that the USD bank account at DIB Bank Kenya Limited had insufficient funds.

The charge sheet further stated that on the 12th day of January, 2024 at Diamond Trust Bank headquarters within Nairobi County, issued a Cheque valued at USD. 8,800 dated 12/01/2024 through DIB Bank Kenya Limited in favour of City Gas East Africa Limited knowing that the USD bank account  at DIB Bank Kenya Limited had insufficient funds.

Sheikh was also charged with other counts of issuing bad cheques.

Last week, the accused person was charged before Kibera court and he was nabbed immediately after being released.

He was arraigned under miscellaneous application before Milimani Magistrate court which allowed his detention until today when he was charged.

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FORMER MP NOW WANTS CJ TO ALLOW JUDGES DELIVER JUDGEMENT ON DISSOLUTION OF PARLIAMENT.

The five judge bench former MP wants to be allowed to deliver judgement on parliament dissolution./PHOTO BY S.A.N.

BY SAM ALFAN.

Former Marakwet West MP David Sudi wants judges who heard a case three years ago seeking the dissolution of Parliament compelled to write their judgement in the matter.

Sudi submitted that the files, which were consolidated before the matter was heard, should be forwarded to Chief Justice Martha Koome so that she could direct the judges to complete their decision.

The case was heard by a bench of five judges but four of the judges have since been elevated to the Court of Appeal.

Through his lawyer Nelson Havi, Sudi said the CJ should, alternatively direct Justice Anthony Ndungu to deliver the decision on behalf of other judges who have been appointed to the Court of Appeal.

Other judges in the bench were Justices Lydia Achode, Pauline Nyamweya, George Odunga, Aaron Makau, who has since retired.

Havi said the consolidated petitions were heard in May 2021 and the judges promised to deliver their judgement on notice.

The judgment was not delivered following an order for stay of proceedings.

The order for stay was conditional upon the intended appeal being filed within 30 days from the date of the order, in default of which the stay would lapse.

“No appeal was filed and or served in time or at all, and the stay in Civil Application No E 097 of 2021 is deemed to have lapsed,” said Sudi.

But as the parties were waiting for the appeal, Justices Achode, Nyamweya and Odunga were appointed Judges of the Court of Appeal as Makau retired.

“It is imperative that the question of whether or not Parliament should be dissolved as advised to the President of the Republic of Kenya by Chief Justice David Maraga on 21st September, 2020 be determined without any further delay, the order for stay of proceedings in Civil Application No E 097 of 2021 having lapsed,” added Sudi.

Havi told the court that it was just and proper that the consolidated petitions be transmitted to the Chief Justice to assign five Judges to hear and determine the cases or to write and deliver a judgment on the consolidated petitions.

Havi argue that there has been no activity in the file in respect of the consolidated petitions since 5th May, 2021 when a ruling dismissing a preliminary objection filed by Parliament was delivered. 

“It is imperative that the question of whether or not Parliament should be dissolved as advised to the President of the Republic of Kenya by Chief Justice DK Maraga on 21st September, 2020 be determined without any further delay, the order for stay of proceedings in Civil Application No E 097 of 2021 having lapsed,” lawyer Havi added.

He added that it is just and proper that the consolidated petitions be transmitted to the Chief Justice to assign 5 Judges of the High Court to hear and determine, or to write and deliver a judgment on the consolidated petitions.

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DPP DROPS PLANS TO CHARGE FORMER NTV NEWS ANCHOR SWALEH , FIVE OTHERS.

former director of communications at the office of Prime Cabinet Secretary Musalia Mudavadi Salim Swaleh and other suspects when they were arraigned under miscellaneous application./PHOTO BY S.A.N.

BY SAM ALFAN.

Former NTV news anchor Swaleh Salim can now breathe easy after Director of Public Prosecution Renson Ingonga indicated that he and others will not be facing graft charges.

DPP Ingonga told Milimani Senior Principal Magistrate Benmark Ikhubi that he won’t be preferring charges against Swaleh and 5 others.

Court heard the Prime Cabinet Secretary Musalia Mudavadi forgive Swaleh and the matter will not be pursued further.

The former director of communications at the office of Prime Cabinet Secretary Musalia Mudavadi had been arrested and arraigned in court over claims of conspiracy to defraud foreigners.

The court indicated a file containing the accusations against the suspects following the development.

Swaleh , Otieno Japolo Michael, Terry Kemunto Sese, Daniel Omondi Gogo, John Musundi Wabomba and James William Mokoha have been out on bond as the police investigated the allegations.

The police had said they were investigating claims of conspiracy to commit a felony, attempt to obtain money by false pretence and impersonation.

The investigating officer inspector Nicholas Njoroge explained that the six were arrested on June 23, inside the office of the Director Press Service on suspicions of having committed various offences.

Njoroge states that the complainants were foreigners from Dubai and South Africa respectively who  were lured to the country with an aim of securing a tender to contract two stadia for the upcoming AFCON 2027 games.

According to Njoroge, the complainants were made to believe that after the meeting at Prime cabinet secretary office, they would be given a tender ti build twi stadiums.

The foreigners were also to meet other Government officials from the ministries of Interior, Sport and Youth Affairs and two senators from the budget committee and sports committee with an aim of securing the tender.

The officer claimed that Swaleh allowed other suspects to hold a meeting with the foreigners in the PCS office where Japolo personated himself as the chairman of the Government delivery unit domiciled at the office of the prime cabinet secretary and would assist the foreigners in speeding up the tendering process.

It is alleged that the complainants were defrauded Sh5,850,000 as a registration fee before securing the tender.

The court heard that the respondents breached security protocol by entering the office of Prime Cabinet Secretary without appointment thus needed to investigate who aided their entry and other possible missions. 

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TRAVEL AGENT CHARGED WITH SH7.9 FRAUD TO AWAIT RULING ON A BAIL APPLICATION.

Brian Reeves Obare before court./PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

A travel agent has been charged with fraudulently obtaining over Sh7.9 million from one of his employer’s clients.

Brian Reeves Obare is accused of obtaining money from Nancy Najira Odhungo, which she had paid for visa applicants at Golden Key Travel Consultants company.

The charge stated that he pretended that he was in a position to process travel visas at the Canadian Embassy for clients.

Obare is alleged to have committed the offence on diverse dates between January 1, 2022 and January 31, 2024 in Nairobi, with intent to defraud.

He denied the charges before Chief Magistrate Lukas Onyina.

Obare’s lawyer had made an application to have the plea taking deferred grounds that the accused is unwell having suffered injuries at the time of arrest. 

The court also heard that a miscellaneous application was filed at Kibera Law Courts where the accused was detained for 10 days to allow police to complete investigations.

The accused then moved to the High Court in Kibera and was released on bail terms but the police failed to comply with directions given by the court.

This is because the police rearrested him upon being released and produced him at Milimani Law Courts for plea taking.

However, the same was opposed by the prosecution who also applied to have the accused person denied bail on grounds that he is at flight risk.

The court heard that Obare is a frequent traveller outside the country and holds a government of Seychelles employee card.

The magistrate will deliver the ruling on bail on 31st October 2024.

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COURT APPROVES KINDIKI AS THIRD DEPUTY PRESIDENT,ENDS GACHAGUA HOPE.

Former Deputy President Rigathi Gachagua ushering designated Deputy President Kithure Kindiki in the past event.

BY NT CORRESPONDENT.

High Court has cleared path for Prof. Kithure Kindiki to be sworn as the third Deputy President after 2010 constitution.

This is after High Court lifted conservatory orders barring Kithure Kindiki from being sworn in as the Deputy President.

“The applications for conservatory orders are hereby disallowed. The conservatory orders on 18th of October 2024 in Kerugoya High Court are hereby discharged,” rules the three judge bench.

Justice Eric Ogola (presiding) Freda Mugambi and Anthony Mrima found that the Constitution of Kenya has clearly delineated independent and distinct paths for the 3 arms of government. Accordingly, this court’s intervention in the matter before it is warranted.

“We are convinced and find that the current constitutional framework does not envision any scenario in which the office of the DP would remain vacant except during the brief period required to fill a vacancy,” ruled the bench.

The bench ruled that allowing the conservatory orders to stand will leave the office of the deputy president vacant.

“This court firmly holds that no court should issue orders that have the effect of suspending the operation of any provision of the constitution as such an outcome is clearly not envisioned by the document itself,” ruled the bench.

The  court said impeachment process must align with  the constitutional principles of fairness and justice.

Earlier today court of appeal Judges Patrick Kiage , George Odunga and Aggrey Muchelule declined to suspend the High Court proceedings after it emerged some parties were not served with the application seeking to suspend the proceedings and arrest three judge ruling.

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COURT DECLINES TO TEMPORARILY SUSPEND AGENCY’S BOSS.

Asset Recovery Agency Director Brigadier Alice Mate Muringo at State House after promotion.

BY SAM ALFAN.

Brigadier Alice Mate Muringo will remain the director-general of Asset Recovery Agency after a judge declined to remove her as the agency’s boss.

Employment and labour Relations Court Judge Nduma Nderi declined to suspend the appointment of Brigadier Mate saying the court was not at all convinced that there were compelling reasons to temporarily remove her from office.

The judge added that the petitioners- African Institute For Peace & Human Rights and Charles Kariuki have not persuaded the court that there is cogent basis, in the interim, to issue orders that have the potentiality to adversely affect the running of a public institution.

“It is therefore not in public interest that the order suspending the appointment of Brigadier Mate be granted. Suspending her appointment will also inevitably lead to the consideration of the key issues going to the merit of the Petition before Court which the Court do not wish to delve into without the benefit of a substantive hearing of the Petition,” ruled Employment Court judge Nduma.

The judge at the same time dismissed an application by Attorney General and Brigadier Mate to strike out the case.

The judge they failed to demonstrate that the suit before High Court between Commission of Human Rights and justice, ARA, Attorney General and Brigadier are between same parties before employment court.

“Nor is there any attached pleading from which the Court is able to conclusively reach a determination that the foreshadowed suit is over the same subject matter as the present petition and that the other court have competent jurisdiction to determine the subject matter before this court,” ruled the judge while dismissing AG preliminary objection.

The AG and Brigadier argued there is another similar case.

The court ruling is after African Institute For Peace & Human Rights and Charles Kariuki moved to court seeking the court to quash Brigadier Mate as the Director of Asset Recovery Agency pending hearing and determination of the case.

The petitioners challenged the appointment of Brigadier Mate as the Agency’s director of the ARA.

They said the appointment in April 2021 violated constitutional principles as enshrined under Articles 2, 3, 10(1), 10(2), 35(1), 73(1)(a)(iv), 73(2)(a) and 232(1)(f)(g) and 232(2) of the Constitution of Kenya 2010.

“A declaration that the appointment of the Attorney General as the Agency Director, Assets and Recovery Agency was done in violation, 27, 28, 73(2)(d), 232(1)(e) (f) and (g) of the Constitution,” seeks petitioners.

They further seeks the Employment Court to declare that the people of Kenya are entitled to a refund of all salaries, benefits and any other moneys paid to the AG from public funds guaranteed to public officers.

They argue that the office of the Agency Director, Assets Recovery Agency is a public office established under Section 53 (2) of the Proceed of Crime and Anti Money Floundering Act Cap 59 B of the Laws of Kenya and the appointment to that office must adhere to the legal and regulatory provisions governing appointment to public office.

AG’s failure to respond to the letter dated 18th April 2024 hinged on Article 35 (1) and Section 4 of Access to Information Act of 2016 requesting for information regarding the appointment of Brigadier is evidence that the said appointment was done surreptitiously, in secrecy thus contrary to the legal and regulatory framework governing appointment to public office more so Values and Principles of public Service under Article 232 of the Constitution of Kenya 2010.

“We have legitimate expectation that the Respondents should adhere to due and constitutional process in the recruitment and appointment of public officers to public offices and provision of timely information once requested,” they submitted.

Kariuki in his affidavit said Brigadier Mate was appointed as the substantive director of the Agency on April 18, 2021.

He said being a public office, the appointment to the said office must comply with the strict legal and regulatory framework governing appointments to public office.

According to Kariuki, despite the strict requirements that Government Organs should respond to queries, summons, orders, pleadings, official communication within 21 days, AG in violation of the foregoing legal provision, refused or failed to respond to the said letter.

“The failure to Respond to the above letter allows me to conclude that the said information requested in our letter dated 18th April 2024 does not exits thus, the appointment of the 2nd Respondent was unprocedural as it did not adhere to the legal and regulatory framework governing appointment to public office,” adds Kariuki.

He adds that the foregoing taints the appointment of Brigadier Mate as Agency Director of the Assets Recovery Authority.

“Since her appointment on April 2021 or thereabouts, Brigadier Mate continues to discharge her duties, mandate and responsibilities as if she is lawfully in office. She continues to draw salary and benefits allocated to Assets Recovery Agency by Parliament yet she is unlawfully in office,” adds Kariuki.

In his affidavit, he adds that the continued receiving of salaries and benefits from Assets Recovery Agency risks the loss of public funds that might be impossible to be recovered from the 2nd Respondent thus the Public will suffer irreparable loss as a result of the foregoing. The foregoing puts public funds to risk.

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BUSINESSMAN LOSES CASH BAIL AND NOW FACES ARREST AFTER FAILING TO APPEAR IN COURT FOR HEARING OF HIS CASE.

Paul Mwangi Warutere before Milimani Anti-Corruption Court./FILE PHOTO.

BY NT CORRESPONDENT.

A businessman facing Sh13.7 million fraud alongside five others over fake tender to refurbish Moi International Sport Center has lost a surety of Sh1 million after failing to appear in court.

Milimani Senior Principal Magistrate Dolphina Alego further issued a warrant for the arrest of Paul Mwangi Warutere after forfeiting the surety.

Senior principal prosecutor Hebert Sonye applied for the warrant arrest against Warutere after his lawyer Gordon Ogado told the court he was not aware of his client whereabouts.

Warutere is charged alongside Stephen Ndungu, Mercy Wangui Gichema,James Warutere Njege, Newtral Enterprises and Topmax media limited.

They are accused of obtaining Sh13.7 million from Jane Wanjiru Kabiruri, an offence they allegedly committed on diverse dates between July 22, 2016 and September 8, 2018 in Nairobi.

It is alleged that they defrauded Wanjiru by falsely pretending that they were in a position to incorporate her in a tender to refurbish Moi International Sports Center and Ligi Ndogo.

They are also accused of incurring a debt from Wanjiru by obtaining services to fabricate containers at Sh1,090,000.00 by falsely pretending that they would pay her upon fabrication was complete and raising her invoice.

The charges stated that they committed the offence on diverse dates between 22nd day of July, 2016 and 12 day of August, 2017 in Nairobi and Kajiado.

The charge sheet state that on 19th day of October, 2017 in Nairobi they jointly with intent to defraud issued cheque for Sh. 40.000.00 to Wanjiru drawn from their company namely Newtral Enterprises Limited Account at Barclays Bank of Kenya limited (ABSA knowing that the said account had insufficient funds.

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